Legal cases by issue

Recent legal actions against higher education institutions related to the inaccessibility of information technology (IT) can serve to inform higher education institutions as to best practices and strategies for providing accessible IT in accordance with federal legislation. Legal resolutions have been reached with the U.S. Department of Education Office for Civil Rights (OCR) and the U.S. Department of Justice (DOJ), the federal agencies responsible for enforcing academic and public accommodations under the Americans with Disabilities Act and its 2008 Amendments and Section 504 of the Rehabilitation Act. The following promising practices are among those suggested by resolution agreements and settlements:

Conduct an audit of the accessibility of IT, and develop a corrective action strategy to address problems identified in the audit.
Set institutional standards relating to accessible technology and create a method to monitor compliance.
Provide training and education about accessibility to anyone on campus who is responsible for creating or procuring IT, as well as those responsible for creating content.
Institute procedures for addressing accessibility as a requirement within the procurement process.
Provide and publicize a mechanism by which students, faculty, staff, and members of the public can report access barriers.

The following sections describe in further detail key issues that have surfaced in legal resolutions and settlements involving higher education institutions and technology accessibility. For each issue, a few example cases are identified in which that issue is addressed. Each case is linked to our Resolution agreements and lawsuits page, where additional information is provided about the case.

Definition of “accessible”

OCR resolutions with the South Carolina Technical College System, University of Cincinnati and Youngstown State, all define “accessible” as follows:

“Accessible” means a person with a disability is afforded the opportunity to acquire the same information, engage in the same interactions, and enjoy the same services as a person without a disability in an equally effective and equally integrated manner, with substantially equivalent ease of use. The person with a disability must be able to obtain the information as fully, equally and independently as a person without a disability.

Accessibility audit and corrective action strategy

In several resolutions, OCR has required higher education institutions to complete an audit of the accessibility of their IT and implement a corrective action strategy based on the audit findings. Both the Penn State University and University of Montana resolutions include extensive requirements related to the audit and corrective action strategy. The resolutions have stated that the audit must include university websites, online documents, application processes, library services, learning management systems, classroom podiums and display devices, course registration software, videos, personal response systems (“clickers”), and third party banking services including website and ATM access. The corrective action strategy based on the audit findings must include priorities and a schedule with dates by which corrective action will be completed. It must also be disseminated among all colleges and campuses and posted on a University website dedicated to accessibility.

Policy

Nearly all legal resolutions and settlements have resulted in requirements that institutions develop IT accessibility policies and accompanying procedures, and disseminate the policy and procedures widely throughout the institution, including senior academic leadership (deans and chancellors), department heads, faculty and staff.

Examples:

Training and education

Nearly all legal resolutions and settlements have resulted in requirements that institutions provide accessibility training to faculty and staff who develop or post content on any university website, and to others who select or create IT. They also include a requirement to create and maintain a website focused on IT accessibility, including tools and resources.

Examples:

Procurement

Several legal resolutions and settlements require institutions to institute procedures to address accessibility within the procurement process. Those resolutions that do so include specific accessibility requirements that must be included in Requests For Proposals (RFPs): e.g., bidders must meet the accessibility standards set forth in the Web Content Accessibility Guidelines (WCAG) 2.0 at Level AA for web-based technology, and Section 508 of the Rehabilitation Act for other IT.

Further, resolutions encourage institutions to include language within contracts that requires vendors to warrant the accessibility of their products. The Penn State University and University of Montana resolutions both include this provision, and the language within the Louisiana Tech University resolution is especially strong, “requiring contractors to warrant their compliance with WCAG 2.0 AA, to provide accessibility testing results and written documentation verifying accessibility, to promptly respond to and resolve accessibility complaints, and to indemnify and hold the University harmless in the event of claims arising from inaccessibility.”

All resolutions and settlements that include accessibility requirements for procurement also include exceptions for procuring non-compliant products where accessibility is not technically feasible or would fundamentally alter a program. In these cases the procurement procedures require the University to be prepared to provide accessible alternatives for specific students.

Websites

Several of the legal cases against higher education institutions have specifically focused on web accessibility. All resolutions require web pages and applications to comply with WCAG 2.0 at Level AA, and include specific dates by which covered web content must be compliant. They all distinguish between new pages and pre-existing or legacy pages, but differ in the specific requirements for each. Typically, all new pages must be made compliant after a specified target date, while pages existing prior to the resolution must provide a mechanism by which individuals can request accessible versions or equally effective alternatives. The University of Montana resolution requires compliance only of web pages that provide essential student functions. All others must have a clear statement (or a link to a statement) describing the University’s commitment to web accessibility and a method to report barriers and/or to receive an alternative equally effective accessible format.

The resolution with the South Carolina Technical College System requires that each college conduct an annual website accessibility review and submit an annual report documenting when the college conducted its website review, summarizing the findings, and identifying the steps that will be taken to correct any identified problems. The System Office will designate one person to review all of the annual reports and to monitor steps taken to correct any problems. For the first three years following the resolution, an annual summary report must be submitted to OCR.

Examples:

Learning Management Systems

Some complaints specifically singled out learning management systems (LMS), and consequently, their resolutions did the same. The Penn State University resolution provided a deadline by which the university was to replace ANGEL with an accessible LMS and required that pilots include blind students and faculty. The University of Montana resolution included a deadline by which the university was to address the accessibility of two specific features within its LMS (Moodle), chat and forums, since these features had been specifically identified as problems in the complaint.

Classroom technologies (podiums, display equipment, and “clickers”)

Both the Penn State University and University of Montana resolutions include specific requirements for implementing system changes that will allow blind faculty members to control the classroom podium and display equipment without the assistance of another individual, as well as requirements that any “clicker” utilized by the university shall include an accessible option that is available to blind students at the same price and at the same time as the clicker that is available to sighted students.

Banks and ATMs

Both the Penn State University and University of Montana resolutions require the universities to address accessibility of banking systems, including websites and automated teller machines (ATMs), that are offered to students, faculty, and staff through a contractual relationship with the institution.

Grievance procedure

Several resolutions require institutions to have in place a grievance procedure whereby a student, faculty, staff, or member of the public may file a complaint to a designated office regarding an IT accessibility barrier. The resolutions include specific requirements as to where the grievance procedure should be posted (disability services office, equal opportunity and/or affirmative action offices, and the website dedicated to accessibility).

The grievance procedure must include a mechanism whereby a high-ranking responsible party or his or her designee shall investigate the complaint and respond to the complainant within a reasonable time (which in some resolutions is specifically defined).

Examples:

Captioning

Captioning of recorded video is required by WCAG 2.0 at Level A and captioning of live events is required by WCAG 2.0 at Level AA, so captioning is indirectly required within all resolutions that require WCAG 2.0 compliance. In addition, the National Association of the Deaf (NAD) has filed a series of lawsuits against universities that have all resulted in settlements in which institutions agreed to provide captions in their football stadiums (see Ohio State University and University of Kentucky).

Ownership of accessibility

Several resolutions require the university to hire or designate a staff member with responsibility and commensurate authority to coordinate the university’s IT accessibility policy and procedures.